Citation Nr: 0938978
Decision Date: 10/14/09 Archive Date: 10/22/09
DOCKET NO. 07-08 766 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUE
Whether the appellant's countable income is excessive for
death pension purposes.
ATTORNEY FOR THE BOARD
J. Fussell, Counsel
INTRODUCTION
The Veteran served on active duty from April 1942 to December
1945. The Veteran died in September 1968. The appellant is
the Veteran's surviving spouse.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a decision of the Department of Veterans Affairs
(VA) Regional Office (RO) in Huntington, West Virginia.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. The appellant is the surviving spouse of a Veteran who had
qualifying wartime service.
2. The appellant's reported income, less medical expenses,
exceeds the maximum rate of death pension payable to a
surviving spouse with no children.
CONCLUSION OF LAW
As the appellant's income exceeds the maximum rate, the
criteria for death pension benefits are not met. 38 U.S.C.A.
§§ 1502, 1503, 1541 (West 2002); 38 C.F.R. §§ 3.23, 3.271,
3.272 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA amended VA's duties to notify and to assist a
claimant in developing information and evidence necessary to
substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38
C.F.R. § 3.159.
Duty to Notify
Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA
receives a complete or substantially complete application for
benefits, it will notify the claimant of (1) any information
and medical or lay evidence that is necessary to substantiate
the claim, (2) what portion of the information and evidence
VA will obtain, and (3) what portion of the information and
evidence the claimant is to provide. See Shinseki v.
Sanders, 129 S. Ct. 1696 (2009).
The VCAA notice was intended to be provided before the
initial unfavorable adjudication by the RO.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
A review of the record shows the appellant was not provided
with pre-adjudication VCAA notice by letter. However,
pursuant to the Board's October 2008 remand she was informed
by RO letter of March 2009 that VA would obtain VA records
and records from other Federal agencies, including the Social
Security Administration, and that she could authorize VA to
obtain records not held by Federal agencies, e.g., from local
governments, private physicians, hospitals, or current or
former employers on her behalf.
By virtue of the notifications of the denial of her claim and
the statement of the case (SOC) of January 2007 as well as
the supplemental SOCs (SSOCs) of September 2007 and July
2009, the appellant was informed of what was needed to
substantiate her claim.
An error in failing to afford a preadjudication notice
(timing-of-notice error) can be cured by notification
followed by readjudication. See Mayfield v. Nicholson,
499 F.3d at 1323-24; Prickett v. Nicholson, 20 Vet. App. 370,
376 (2006); Pelegrini v. Principi, 18 Vet. App. 112, 122-24
(2004). An SSOC constitutes a readjudication of a claim,
even if it states that it is not a decision on the appeal.
Mayfield v. Nicholson, 20 Vet. App. 537, 541-42 (2006);
affm'd Mayfield v. Nicholson, 499 F.3d 1317 (Fed.Cir. 2007)
(a SSOC serves as a readjudication decision); see also
Prickett, 20 Vet. App. at 377-78.
Duty to Assist
As required by 38 U.S.C.A. § 5103A, VA has made reasonable
efforts to identify and obtain relevant records in support of
the claims. The appellant was afforded the opportunity to
testify at a personal hearing in support of her claim but
declined that opportunity.
The Veteran has submitted private records in the form of a
prescription note from a private physician and print-outs
from a pharmacy, signed by a pharmacist. She has not
identified any additionally available evidence for
consideration in the appeal.
Substantial, rather than absolute or strict, remand
compliance is the appropriate standard for determining remand
compliance under Stegall v. West, 11 Vet. App. 268 (1998)).
Chest v. Peake, No. 2007-7303, slip op (July 21, 2008 Fed.
Cir.); 2008 WL 2796362 (Fed.Cir.); see also D'Aries v. Peake,
22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet.
App. 141, 146-47 (1999)). In this case, as will be
described, the RO complied with the instructions in the
October 2008 Board remand.
As there is no indication that the appellant was unaware of
what was needed for claim substantiation nor any indication
of the existence of additional evidence for claim
substantiation, the Board concludes that there has been full
VCAA compliance.
Entitlement to Death Pension Benefits
The appellant is the surviving spouse of a veteran who had
qualifying wartime service; as such, she may be entitled to a
rate of pension set by law, reduced by the amount of her
countable income. 38 U.S.C.A. § 1541; 38 C.F.R. § 3.23. The
appellant's claim for death pension benefits was denied
because the RO found that her countable income exceeds the
maximum countable income for a surviving spouse with no
children.
Countable Income
The appellant contends that she is entitled to VA death
pension benefits, based on her income. She feels that VA has
unfairly denied her claim, and that her medical expenses have
not been properly counted.
The maximum rate of death pension benefits that may be paid
is set by law. An otherwise qualifying claimant will be paid
up to the maximum rate, reduced by the amount of her
countable income. 38 U.S.C.A. § 1541; 38 C.F.R. § 3.23. In
other words, any countable income of the appellant will
reduce the pension benefits, dollar for dollar, by the amount
of the income. Thus, if the appellant's annual income
exceeds the maximum payable rate, the entire amount is
offset, and the appellant is not entitled to any death
pension benefits.
In determining income for purposes of entitlement to death
pension, payments of any kind from any source are counted as
income during the 12-month period in which received unless
specifically excluded under 38 C.F.R. § 3.272. 38 U.S.C.A.
§ 1503; 38 C.F.R. § 3.271. Exclusions from income do not
include Social Security Administration (SSA) disability
benefits. See 38 C.F.R. § 3.272.
Unreimbursed medical expenses paid by the appellant are
excluded from income, if they exceed 5 percent of the maximum
rate. 38 C.F.R. § 3.272(g). In order to be excluded from
income, these medical expenses must be paid during the time
period at issue, regardless of when they were incurred. In
addition, they must be out-of-pocket expenses, for which the
claimant received no reimbursement from any third party, such
as through an insurance company or Medicaid.
In VA Form 21-1518-1, Improved Pension Eligibility
Verification Report (Surviving Spouse with no children) of
December 2004 the appellant reported that her income was from
Social Security in the amount of $851.00 per month and also
interest and dividends of $1200.00.
In VA Form 21-8416, Medical Expense Report, in December 2004
the appellant reported having paid medical bills, including
physicians visits from January 2004 to July 2004. In
separate VA Form 21-8416, Medical Expense Report, of December
2004 she listed medications and, apparently, the physicians
who had prescribed the medications but did not list the dates
and amounts of payment. Rather, she reported that she paid an
approximate total for these medicines of $313.72 per month.
The RO notified the appellant by letter of June 2005 that her
claim for death pension benefits was denied. She was
informed that her income, effective January 1, 2005, exceeded
the maximum annual death pension set by law. The income limit
for a spouse with no dependents was $6,814.00. She was
informed that consideration was given to Medicare and medical
insurance which totaled $2,402.00, but her income for VA
purposes was still greater than the allowable limit. Only
medical expenses that were more than $341.00, which
represented 5% of her maximum annual death pension rate of
$6,814.00. She was informed that consideration could not be
given to expenses she had pain prior to December 7, 2004, and
consideration could not be given to her medicines as a
continuing monthly expense. If her circumstances changed,
she could complete and return the same forms she had
previously filed, copies of which were enclosed.
In response, in October 2005, the RO received from the
appellant VA Form 21-8416, Medical Expense Report, in which
she reported having paid $3,477.76 from January to December
2004 for prescription medication and, during that same time,
having paid $540.00 for over-the-counter medication. In an
attached pharmacy print-out from K-Mart, signed by a
registered pharmacist, expenses for prescription medicine
paid from January 7, 2004, to July 8, 2005, were listed,
totaling $5,83983.
In the appellant's notice of disagreement (NOD), she reported
that her medications, as a continuing monthly expense, had
not been considered, and cited M21, Pt IV, chapter 16:31(d)
for the authority to consider medical expenses prospectively.
Attached was a private physician's prescription form which
stated that the appellant had to take all of her medications
as prescribed and written monthly.
By RO letter of March 2006 the Veteran was informed that her
claim for death pension benefits was denied. She was
informed that her income, effective January 1, 2005, exceed
the maximum annual death pension limit. The income limit for
a surviving spouse with no dependents was $6,814.00,
effective December 1, 2004. She received annual Social
Security of $11,306.00 and annual interest of $1,200.00.
Consideration had been given to her medical expenses for
Medicare deductible and insurance premiums, which totaled
$2,402.00, but her income for VA purposes was still greater
than the allowable limit. She was informed that
consideration could be given to family medical expenses paid
after December 7, 2004. Also, it was noted that she desired
consideration of the amount paid for prescriptions as a
prospective medical expense. As to this, it was further
stated that the pharmacy statement submitted did not show
that all of the medications recurred on a regular basis.
Also, the statement only showed the price of the medication
and not the amount paid, date paid, and who paid the expense.
Therefore, it was reasonable to continue not counting those
expenses prospectively because the cost of the medication was
not reasonably predictable.
In VA Form 21-8416, Medical Expense Report, in January 2007
the appellant listed $938.00 as being paid for Medicare (Part
B) from December 2004 to 2005 and $1,464.00 as being paid
from December 2004 to December 2005 for private medical
insurance to "AAPR." She also reported having paid
$3,943.46 for prescription medication from December 2004 to
December 2005. Also during that same time she had paid
$600.00 for over-the-counter medication. In an attached
pharmacy print-out from K-Mart, signed by a registered
pharmacist, expenses were listed for prescription medicine
paid from January 4, 2005, to December 29, 2005, in the
amount of $4,253.49, listing the medications and prescribing
physicians.
By RO letter in June 2007 the appellant was requested to
complete an enclosed VA Form 21-0518-01, Improved Pension
Eligibility Verification Report, and return it within the
next 30 days.
In response, a letter was received in July 2007 from the
appellant's son stated that he had asked a Mr. B to look into
his mother's claim.
However, an executed VA Form 21-0518-01, Improved Pension
Eligibility Verification Report, was not received.
In response to the Board's October 2008 remand, in March 2009
the RO wrote the appellant and her attention was drawn to an
enclosed letter entitled "Veterans Claims Assistance Act
(VCAA)." She was also informed that additional evidence was
needed, consisting of an executed VA Form 21-0518-1, Improved
Pension Eligibility Verification Report.
However, an executed VA Form 21-0518-01, Improved Pension
Eligibility Verification Report, was not received.
Although most of the deficiencies with the "Medical and
Remedial Checklist" forms were pointed out to the appellant,
she did not provide any of the requested clarification or
documentation. Moreover, as to those expenses which appear,
on their face, to be legitimate medical expenses, there is
insufficient evidence, such as dates, or providers, to
determine that these were separate from the expenses reported
in the pharmacy print-out. Since she has failed to provide
sufficient information documenting that these were legitimate
medical expenses; that she paid these expenses; the dates she
paid the expenses; or that she was not reimbursed by any
third party, they are not probative, and may not be counted
to reduce her income. She has not submitted any medical
expenses for the succeeding years.
Thus, based on the evidence of record, the appellant's income
is excessive for death pension purposes. This being the
case, the claim must be denied because the preponderance of
the evidence is unfavorable. See 38 U.S.C.A. § 5107(b); 38
C.F.R. § 3.102.
ORDER
Because the appellant's countable income is excessive for
death pension purposes, entitlement to death pension is
denied.
____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs